An Illusion of Protection and an Assumption of Responsibility: The Possibility of Swedish State Liability after Laval

2012 ◽  
Vol 14 ◽  
pp. 453-473
Author(s):  
Barend van Leeuwen
Keyword(s):  
Direct Effect ◽  
Trade Union ◽  
Trade Unions ◽  
The State ◽  
Eu Law ◽  
Legislative Framework ◽  
State Liability ◽  
Judicial Protection ◽  
Careful Investigation ◽  
Horizontal Direct Effect

AbstractThis chapter will look deeper into the question of horizontal direct effect in the Viking and Laval cases by focusing on the effects of the Laval judgment. It will be submitted that the Laval case was an example of the horizontal enforcement of the vertical right to be protected by the State against interference with one’s free movement rights under EU law. The trade union acted within a legislative framework which had been established by the State and which provided protection to the trade union. The CJEU’s judgment established that this protection had been illusory, and the Swedish State assumed responsibility by amending two pieces of legislation. However, the reasoning of the CJEU did not sufficiently recognise the vertical nature of the proceedings. As a result, the Swedish Labour Court granted Francovich damages against the trade union, but these damages did not adequately compensate Laval for its losses. Therefore, the extension of horizontal direct effect to trade unions has resulted in inadequate judicial protection in this case. In future cases which present themselves as cases between two private parties the CJEU should more carefully investigate the responsibility of the State. A more careful investigation would open up the possibility of a Francovich claim against the State, if the State bore responsibility for breaches of EU law committed by private parties.

4. Enforcing EU law rights in national courts

2017 ◽  
Author(s):  
Elspeth Berry ◽  
Matthew J. Homewood ◽  
Barbara Bogusz
Keyword(s):  
Direct Effect ◽  
Indirect Effect ◽  
Eu Law ◽  
National Courts ◽  
Wide Range ◽  
Complete Series ◽  
Explanatory Text ◽  
State Liability ◽  
The Relationship ◽  
Primary Materials

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the development of the concepts of the direct effect and indirect effect of EU law—in other words, the rights of an individual or business to rely on a provision of EU law in their national courts; the rules that apply to the grant of remedies in national courts for breach of directly or indirectly effective EU law; and the relationship between direct and indirect effect, and the principle of State liability.

2. Supremacy, direct effect, indirect effect, and state liability

2018 ◽  
Author(s):  
Matthew J. Homewood
Keyword(s):  
Member State ◽  
Direct Effect ◽  
Indirect Effect ◽  
National Court ◽  
Legal Order ◽  
Eu Law ◽  
Key Concepts ◽  
State Liability ◽  
The Eu

This chapter discusses the key concepts within the EU legal order: supremacy, direct effect, indirect effect, and state liability. The doctrine of supremacy dictates that EU law takes precedence over conflicting provisions of national law. If a provision of EU law is directly effective, it gives rise to rights upon which individuals can rely directly in the national court. If an EU measure is not directly effective, a claimant may be able to rely on it through the application of indirect effect, which requires national law to be interpreted in accordance with relevant EU law. State liability gives rise to a right to damages where an individual has suffered loss because a Member State has failed to implement a directive or has committed other breaches of EU law.

Trade Union Ambivalence Toward Enforcement of Employment Standards as an Organizing Strategy

2016 ◽  
Vol 17 (1) ◽  
Author(s):  
Ingrid Landau ◽  
John Howe
Keyword(s):  
Trade Union ◽  
Trade Unions ◽  
Ad Hoc ◽  
Minimum Standards ◽  
The Past ◽  
Union Movement ◽  
Employment Standards ◽  
Legislative Framework ◽  
Core Part

Trade unions in Australia have long played an important role in the enforcement of minimum employment standards. The legislative framework today continues to recognize this enforcement role, but in a way that is more individualistic and legalistic than in the past. At the same time that the law has evolved to emphasize the representation and servicing role of trade unions, the Australian union movement has sought to revitalize and grow through the adoption of an “organizing model” of unionism that emphasizes workplace-level activism. This Article explores how these seemingly opposing trends have manifested themselves in the enforcement-related activities of five trade unions. Considerable diversity was found among the unions in relation to the extent to which and how the unions performed enforcement-related activities. However, all five unions spent significant time and resources on monitoring and enforcing employer compliance with minimum standards and saw this work as a core part of what they do. The case studies suggest, however, that the way in which this work is undertaken within unions and by whom has changed significantly in recent decades. While there was evidence that enforcement work was used tactically by unions in certain cases, this was largely on an ad hoc basis and there was little indication that the enforcement work was integrated into broader organizing objectives and strategies. Overall, the unions were ambivalent, if not skeptical, as to the capacity for enforcement work to grow unions through building workplace activism and collective strength.

scholarly journals The Case ofLavalin the Context of the Post-Enlargement EC Law Development

2008 ◽  
Vol 9 (12) ◽  
pp. 2279-2308 ◽  
Author(s):  
Uladzislau Belavusau
Keyword(s):  
Direct Effect ◽  
Trade Unions ◽  
Social Model ◽  
Social Rights ◽  
X Ray ◽  
Social Law ◽  
Ec Law ◽  
Horizontal Direct Effect

This article does not envisage an overwhelming goal to present a detailed X-ray of the recently much-discussed ECJ decisions in the field of social law, namelyLavalandViking.One could find several very profound papers whose authors thoroughly explore the various issues at stake, including the trade unions strategies in the frame of the EC Law, the role of the Posted Workers Directive, a horizontal direct effect in the context of the service-providing, the negotiation of wages and the Scandinavian social model. Therefore, the goal of this piece is to putLavalinto the macroflora of a wider context, inherent to the effects of the post-enlargement labour conflict and its implications for the fundamentalization of social rights in the Union.

Trade Union Liability for ‘EU-Unlawful’ Collective Action

2012 ◽  
Vol 3 (1) ◽  
pp. 5-18 ◽  
Author(s):  
Jonas Malmberg
Keyword(s):  
Collective Action ◽  
Trade Union ◽  
Trade Unions ◽  
Eu Law ◽  
The European Union ◽  
Collective Actions ◽  
Court Of Justice ◽  
The Right ◽  
Alternative Understanding ◽  
The Eu

The Court of Justice of the European Union (ECJ) has made it clear that collective action taken by trade unions under certain circumstances might violate the freedom of services and the right of establishment under the Treaty (Articles 49 and 56 TFEU). However, the Court has not addressed the issue of which remedies are to be available against a trade union arranging such an ‘EU-unlawful’ collective action. This question was dealt with by the Swedish Labour Court (Arbetsdomstolen) in its final judgment in December 2009. The article discusses this judgment and presents an alternative understanding of the EU law requirements concerning remedies for EU-unlawful collective actions.

Popławski II: A Half-Hearted Embrace of Hierarchical Supremacy

2020 ◽  
Vol 13 (1) ◽  
pp. 155-174
Author(s):  
Sim Haket
Keyword(s):  
Direct Effect ◽  
Hierarchical Model ◽  
Eu Law ◽  
Legal Basis ◽  
Hierarchical Relationship ◽  
State Liability

In the Popławski II judgment, it is held that primacy of EU law provides the legal basis for the duty of consistent interpretation and State liability. This corresponds to a perspective where there is a hierarchical relationship between EU and national law. However, another feature of this hierarchical model, i.e. the possibility to disapply conflicting national law, without having recourse to direct effect, is rejected.

6. The effects of EU law in the national legal systems

2017 ◽  
Author(s):  
Michal Bobek
Keyword(s):  
Direct Effect ◽  
Indirect Effect ◽  
Eu Law ◽  
Legal Systems ◽  
Rules And Principles ◽  
State Liability ◽  
Default Rules

This chapter examines how EU law interacts with national legal systems. It first explains the default rules for the national application of EU law. It then focuses on three key principles: direct effect, indirect effect, and primacy. It considers requirements formulated with respect to procedures for the national enforcement of EU law and state liability for breaches of EU law. The chapter concludes with a case study, which illustrates the interplay between the rules and principles introduced in this chapter.

8. The Nature and Effect of EU Law: Direct Effect and Beyond

EU Law ◽  
2020 ◽  
pp. 217-261
Author(s):  
Paul Craig ◽  
Gráinne de Búrca
Keyword(s):  
Direct Effect ◽  
Indirect Effect ◽  
Fundamental Rights ◽  
Eu Law ◽  
National Courts ◽  
Legal Effect ◽  
General Principles Of Law ◽  
The Uk ◽  
Horizontal Direct Effect ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter discusses the doctrine of direct effect. In a broad sense direct effect means that provisions of binding EU law, which are sufficiently clear, precise, and unconditional to be considered justiciable, can be invoked and relied on by individuals before national courts. The legal effect of directives is complex. They have vertical but not horizontal direct effect. The ECJ has however crafted a growing number of qualifications to the proposition that directives do not have horizontal direct effect. The result is that directives can still have ‘legal effect’ on private parties in various ways through the principle of indirect effect/harmonious interpretation; incidental effect; fundamental rights; general principles of law; and where a regulation makes reference to a directive. The UK version contains a further section analysing issues concerning direct effect in relation to the UK post-Brexit.

6. The effects of EU law in the national legal systems

2020 ◽  
pp. 154-190
Author(s):  
Michal Bobek
Keyword(s):  
Direct Effect ◽  
Indirect Effect ◽  
Eu Law ◽  
Legal Systems ◽  
Rules And Principles ◽  
State Liability ◽  
Default Rules

This chapter examines how EU law interacts with national legal systems. It first explains the default rules for the national application of EU law. It then focuses on three key principles: direct effect, indirect effect, and primacy. It considers requirements formulated with respect to procedures for the national enforcement of EU law and state liability for breaches of EU law. The chapter concludes with a case study, which illustrates the interplay between the rules and principles introduced in this chapter.

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